Child Support

A. Child Support Guidelines

Michigan is required by law to adopt Uniform Child Support Guidelines in order to obtain Federal funds to defray the cost of operating the system. The Court is required to presume that the amount of support under the guidelines is correct. You can access the manual used by the Friend of the Court to determine child support at here. This manual calculates support based upon the number of children and each of the parent’s income. The amount under the formula is affected by several factors such as whether either parent pays for health insurance and the cost of same; which parent takes the dependency deduction on income taxes and whether there are any child care expenses. Normally child support is calculated as an amount due for child support plus an amount due for contribution to medical insurance premiums and an additional contribution for any child care expense.
 

B.  No Retroactive Modification

Several aspects of the statutes governing child support are inherently unfair and require the parties’ diligence to prevent an unjust result.  By way of example, MCLA 552.603 states that each payment of support is considered the same as a Judgment at the time that it is due and is not subject to “retroactive modification”.  What this means is that regardless of whether it is fair, a child support order remains in effect until it is changed by the Court.  If you were to take full time custody of your children when there is a child support order in effect for you to pay the other parent, that order remains in effect until you file a motion with the Court to change it.  On more than one occasion, I have met with parents who have been the sole support of their children who face staggering arrearages in child support because they failed to obtain a new court order acknowledging the change of custody or parenting time.  Most courts have forms you can file without an attorney to make these necessary changes.

C.  Deviation

While it is possible to deviate from the child support formula, it is difficult to do so.  The Michigan Child Support Formula manual lists 18 factors which can be used by the Court.  All of the factors are based upon the basic principal that the strict application of the formula may produce an unjust or inappropriate result such as in cases where a child has special needs or extraordinary educational expenses or when a parent does not have the ability to pay the child support based upon the fact that they have agreed to be responsible for jointly accumulated debt.  These factors are listed as Section 1.04(E) under the 2008 Michigan Child Support Formula Manuel. 

D.  Imputation of Income

The Friend of the Court also has the ability to impute income to a party who is not currently earning up to their full potential.  Under these situations, the Court is basically ignoring the fact that one parent earns very little or nothing and presumes that they have the ability to work and earn at a certain wage level.  The factors the Court considers are:

• Prior employment experience and history, including reasons for any termination or changes of employment.

• Physical and mental disabilities that may affect a parent’s ability to obtain or maintain gainful employment.

• Availability for work (exclude periods when a parent could not work or seek work, e.g., hospitalization, incarceration, debilitating illness, etc.).

• Availability of opportunities to work in the local geographic area.

• The prevailing wage rates in the local geographical area.

• Diligence exercised in seeking appropriate employment.

• Evidence that the parent in question is able to earn the imputed income.

• Personal history, including present marital status and present means of support.

• The presence of the parties’ children in the parents’ home and its impact on that parent’s earnings.

• Whether there has been a significant reduction in income compared to the period that preceded the filing of the initial complaint and its impact on that parent’s earnings.

CUSTODY

The Court recognizes two types of custody; legal custody and physical custody.  Legal custody is the right to have in impact on the major decisions regarding the child(ren) such as where they go to school, non-emergency medical issues, counseling, religious issues and other important decisions effecting the welfare of the child.  Physical custody is when one parent provides most of the day to day care for the child.  If the parties cannot agree upon custody, the Court is required to assess the following factors of the Child Custody Act:

• The love, affection, and other emotional ties existing between the parties involved and the child.

• The capacity and disposition of the parties involved to give the child love, affection, and guidance and to continue the education and raising of the child in his or her religion or creed, if any.

• The capacity and disposition of the parties involved to provide the child with food, clothing, medical care or other remedial care recognized and permitted under the laws of this state in place of medical care, and other material needs.

• The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.

• The performance, as a family unit, of the existing or proposed custodial home or homes.

• The moral fitness of the parties involved.

• The mental and physical health of the parties involved.

• The home, school, and community record of the child.

• The reasonable preference of the child, if the court considers the child to be of significant age to express preference.

• The willingness and ability of each of the parties to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent or the child and the parents.

• Domestic violence, regardless of whether the violence was directed against or witnessed by the child.

• Any other factor considered by the court to be relevant to a particular child custody dispute. 

Burden of Proof

The Courts are required to determine whether or not an “established custodial environment” exists in order to determine what standard to apply as to whether there should be a change.  If, over an appreciable amount of time the child naturally looks to one parent for guidance, discipline, the necessities of life and parental comfort, that parent is set to have an established custodial environment.  If the Court determines that an established custodial environment exists, it can only change custody if clear and convincing evidence is presented that there has been a significant change in circumstance and that a change of custody would be in the best interest of the child. 

Contrary to popular belief, the decision of the child where he/she would like to live isn’t necessarily significant.  While a child can express preference where they would like to live, the Court must still go through the best interest factors to analyze where the child would be better off.  A major factor with most Judges is maintaining consistency.   So, if one parent was largely responsible for the child while the other parent worked, it is highly unlikely that the Court would award sole physical custody to the working parent.  Again, many of the factors revolve around how well the child is doing in the current environment.  If the child is doing poorly, the Court may be more inclined to change the responsibilities of the parties in the hopes of benefitting the child.